Affirmative Action, Hate Speech, and Tenure: Narratives about Race, Law, and the Academy

Reviewed by Patricia Marin

 The topics of race, ethnicity, and oppression have been debated by scholars from a range of perspectives. Many now shout “enough is enough,” believing that these topics have been hyperdiscussed or even resolved. However, Affirmative Action, Hate Speech, and Tenure: Narratives about Race, Law, and the Academy provides a unique lens with which to view race. In particular, Benjamin Baez notes that the way race is framed by the courts, in terms of intention, effects, injury, evidence, and rights, dictates the way race is seen by the academy and, ultimately, by society.

Reviewing legal cases and recharacterizing the debates on affirmative action, hate speech, and tenure discrimination, Baez demonstrates the dominant role of the legal system in “defining and policing race conventions and norms” while simultaneously discarding other possibilities “for conceptualizing and resisting those conventions and norms.” Simply put, the way the legal system frames issues of race limits nonjuridical responses. For example, the court’s determination that freedom of speech is more important than protecting individuals from victimization has shaped the way college campuses deal with hate speech. Furthermore, Baez discusses how this power gives “courts the opportunity to enact their own kind of violence against racial minorities.” This leads Baez to suggest that there are significant limitations to relying on the courts when it comes to issues of social justice. Defining race in legal terms has created “obstacles to a critical response to racial injury” by dictating how racial injury is discussed and proven, thereby placing limits on our understanding of who has power and how it is exercised. Baez goes so far as to argue that by blindly accepting the courts’ conceptions of race, many who believe they are fighting for racial justice are acting counter to their own interests by crediting conceptions of race and ethnicity that should be challenged.

Baez’s review of the law is novel; he studies court cases and the related literature as narratives (thus the subtitle of the book) and then uses the narratives to provide noteworthy assessments about the legal system, race, the academy, and society. Essentially, Baez offers additional evidence for what many of us already know: that the legal system and the academy perpetuate the struggles of people of color by stagnating the possibility for positive change.

Although his analysis is interesting, Baez leaves us unsatisfied by focusing largely on revelation rather than on solution. For example, his discussion of raising awareness of these issues in law schools, the training sites of future lawyers and judges, and his suggestions that we develop “counternarratives” and disrupt the conventions of the academy are important. Yet the book would be more valuable if it expanded on these and the other practical suggestions for ending the cycle of violence and oppression that Baez spends so much time revealing.

Baez closes his book with an example of his premise that “legal and political discourses are dictating the terms of how race will be understood.” He discusses the recent social science research that documents the impact of student diversity on education. Baez contends that this research agenda—initiated after the 1996 Hopwood v. Texas decision that asserted that diversity does not provide a compelling interest for race-conscious decisions in student admissions—was developed to provide evidence of higher education’s compelling interest in race-conscious admissions policies. While it is accurate that legal discourse is guiding this research agenda, Baez’s explanation of this research is not entirely correct. He suggests that it attempts to emphasize the differences among various racial and ethnic groups. That, however, is only a small part of the story. As Jonathan Alger wrote in “The Educational Value of Diversity” in the January–February 1997 issue of Academe:

A common criticism of race-based diversity programs . . . is that race is used as a mere proxy for a particular perspective or point of view. . . . In fact, the educational value of diversity can be defended largely on the basis of the exact opposite of this stereotypical assumption. The range of similarities and differences within and among racial groups is precisely what gives diversity in higher education its educational value.

It is this idea that is the basis of research on the educational impact of diversity: that there are differences and similarities within and among all racial and ethnic groups, all equally valuable. Furthermore, even though the research was originally designed with the specific purpose of addressing legal questions, its findings are being used to improve educational practices and are, therefore, having positive results beyond the original intent. These broader results may not have occurred but for court decisions generating the need for the studies.

Overall, this book is interesting in its analysis and highlights the prevalence of unquestioning acceptance of the actions of the courts and the academy. Baez is quite effective in pointing out the conflicts between values inherent in the legal cases he discusses, and in exposing the results of judicial activity. While the legal cases are well explained, and their academic and theoretical aspects thoroughly explored, a less legalistic and less academic discussion might have been useful, since few people are familiar with both the academic and legal worlds and their respective languages. Nevertheless, it is very powerful to see these race-related cases discussed together, and they provide Baez with strong evidence for his argument.

While I agree with many of Baez’s arguments, it is important to note that the only option many individuals currently have for potential redress is the legal system. Although he agrees that we cannot totally turn away from litigation, Baez seems to be interested in significantly reducing the role the judiciary plays in shaping matters of race. I would argue that taking grievances to the judicial system needs to continue while other options are being developed. Achieving social justice requires fighting on all possible fronts, and in the current political climate, those fighting for it cannot afford to give up any potential venues, especially since, as Baez points out, legal cases often affect the future of entire groups of people. I greatly appreciate, however, that Baez calls on all of us, especially those of us interested in social justice, to open our eyes to what we may be saying and doing and to question whether we are simply perpetuating the very thing we are trying to overcome. Finally, I am grateful for Baez’s optimism in these matters, something that is difficult to have when it comes to racial justice, but nevertheless essential to the continued struggle for social change and the search for new possibilities to eliminate oppression.

Patricia Marin is a research associate in higher education with the Civil Rights Project at Harvard University. She would like to thank her colleagues at the project for their feedback on this review.

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